The Supreme Court Spends an Impossibly Ghoulish Hour Discussing How States Should Kill People
WASHINGTON, DC — The drug midazolam may or may not be effective in preventing death row inmates from experiencing the excruciating pain caused by the other drugs Oklahoma wants to use to execute three inmates. This pain, which Justice Elena Kagan likens to the sensation of being burnt alive, would violate the Constitution’s prohibition on cruel and unusual punishment under any plausible interpretation of the Eighth Amendment. The issue in Glossip v. Gross, which the justices heard on Wednesday, is whether very high doses of midazolam dull the pain of execution sufficiently to render Oklahoma’s methods constitutional.
Early on in the argument, Justice Sonia Sotomayor cites the case of Joseph Rudolph Wood, an Arizona inmate who spent two hours in apparent agony during a botched execution that began with a massive dose of midazolam. Almost immediately, however, the most conservative justices question whether anyone can really know that Wood suffered because midazolam is not effective. What if the execution was not “properly conducted,” Justice Antonin Scalia asks, a concern echoed by Chief Justice John Roberts who suggests that Wood may have suffered because of a problem with his “veins.”
Justice Samuel Alito, in an early sign that this argument is about to take an extraordinarily ghoulish turn, suggests that not enough inmates have suffered Wood’s fate for anyone to be able to determine whether midazolam is effective for use as an execution painkiller. After asking how many executions have made use of this drug — the answer is 15 — Alito tells Robin Konrad, the attorney arguing against using midazolam, that she is only “talking about one” execution. Later in the argument, Alito claims that the question of whether midazolam is a sufficiently effective painkiller may be unknowable, since the high doses Oklahoma wants to use in its executions are toxic. “If it is a lethal dose,” Alito asks, “how are you going to do a study” on whether high doses of midazolam dull the pain of an execution?